Concept and Significance of Police Enforcement Measures
In German law, police enforcement measures refer to all actions by which the police, if necessary, enforce their orders against the will of the affected individual. These instruments serve to enforce administrative acts under police and regulatory law by compulsion. The application of police enforcement measures is a central element of police and hazard prevention law and is subject to strict legal requirements, in particular the principle of proportionality and explicit statutory authorizations.
Legal Basis for Police Enforcement Measures
The legal bases for the use of police enforcement measures are found in particular in the police laws of the federal states (Polizeigesetz, PolG or SPolG), the Federal Police Act (BPolG), as well as in the Federal Act on Administrative Enforcement (VwVG) and corresponding state laws. In addition, the Basic Law (GG), the Civil Code (BGB), the Criminal Code (StGB), and international regulations (e.g., the European Convention on Human Rights) must be observed.
Requirements and Principles
The prerequisite for applying police enforcement measures is usually the existence of a lawful and enforceable order (administrative act). The following additionally applies:
- Principle of Determinacy: The police measure must be specific, i.e., clearly defined in its content.
- Principle of Proportionality: The selection and application must be suitable, necessary, and reasonable.
- Choice of Means (“Choice of Enforcement Measure”): Among several possible means, the least intrusive must be chosen.
- Warning and Notification: As a rule, police enforcement measures must be announced beforehand, unless there is imminent danger.
- Prior Order: An order must have previously been issued which the affected person has not complied with voluntarily.
Types of Police Enforcement Measures
Police enforcement measures are generally classified as:
- Immediate Coercion
- Coercive Fine
- Substitute Execution
- Custody (Deprivation of Liberty Measure)
- Further Specific Measures (e.g., search, seizure, confiscation)
Individual Enforcement Measures in Detail
Immediate Coercion
Definition
Immediate coercion refers to the police using physical force, means of physical force (e.g., handcuffs), or weapons to compulsorily enforce orders.
Statutory Regulation
Immediate coercion is regularly foreseen as a “last resort” (ultima ratio) if other enforcement measures are ineffective or not possible (§ 9 PolG NRW, § 10 BPolG etc.).
Scope of Application
- Carrying away, holding, restraining
- Use of police dogs, horses, water cannons
- Use of firearms (under strict requirements)
- Enforcing bans from premises, arrests, or evictions
Procedural Requirements
Before using immediate coercion, a warning must be issued. The measure is only lawful if milder means are insufficient.
Coercive Fine
Definition
A coercive fine is a punitive measure imposed on the affected person to enforce an obligation to act, tolerate, or refrain from acting by means of a financial penalty.
Legal Basis
The amount of the coercive fine and the procedure are regulated in the respective police or administrative enforcement act (e.g., § 63 VwVG Federal). Coercive fines must be proportionate and suitable to encourage compliance with the order.
Application
- Enforcement of prohibitions on staying in certain places
- Order to refrain from certain actions
Substitute Execution
Definition
Substitute execution is the compulsory enforcement of an act that can be performed by a third party or the authority itself, with the costs being borne by the affected person.
Legal Basis
Regulated, for example, in § 64 VwVG Federal. It is only permissible if an act can be performed by third parties or the authority itself.
Examples
- Removal of unlawfully parked vehicles
- Elimination of hazards by the police at the offender’s expense
Measures Depriving Liberty (Custody)
Definition
Custody covers all police measures aimed at the short-term deprivation of liberty for the purpose of averting danger (§ 35 PolG NRW, § 39 PolG BW).
Legal Basis and Requirements
- Concrete danger to public safety
- Legal basis, for example to protect third parties or to enforce police measures
- Judicial decision, if the deprivation of liberty is not merely temporary
Requirements
- Written justification and logging
- Notification of relatives
- Judicial review in the case of extended deprivation of liberty
Procedural Safeguards and Legal Protection
Warning and Notification
Police enforcement measures must usually be announced in advance and communicated to the affected person. The duration as well as the manner of notification are determined by the respective state regulations.
Documentation Obligations
Each application of enforcement measures must be comprehensively documented and, depending on the measure, recorded in the files. This serves legal oversight and ensures the traceability of administrative interventions.
Legal Remedies
There is generally the possibility of judicial review by administrative courts against the application of police enforcement measures (e.g., application for interim relief pursuant to § 80(5) VwGO). Especially in cases of imminent or already occurred fundamental rights infringements, emergency court applications may be permissible.
Relationship to Fundamental Rights
The application of police enforcement measures regularly constitutes an interference with fundamental rights, in particular:
- Art. 2 para. 2 sentence 2 GG (right to personal liberty)
- Art. 14 GG (property)
- Art. 13 GG (inviolability of the home)
- Art. 8 GG (freedom of assembly)
Such interventions are only permissible based on a formal law and must always be justified by an overriding public interest.
Special Scenarios and Limitations
Requirements of the Rule of Law
Police enforcement measures may only be used in cases expressly provided for by law. Oversight mechanisms (proportionality, purpose limitation, judicial review) serve as limits on police discretion and protect against arbitrary application.
International and European Dimensions
In addition to national regulations, international human rights guarantees such as the European Convention on Human Rights (ECHR) and the EU Charter of Fundamental Rights must be taken into account, especially in cases of deprivation of liberty and physical interventions.
Literature and Further Information
- Police law commentaries on the state police acts
- Specialist literature on administrative procedural law
- Commentaries on fundamental rights articles in the Basic Law
Summary: Police enforcement measures are essential instruments for enforcing police orders and are regulated by police and administrative enforcement law. The statutory requirements and high standards of the rule of law ensure these measures are applied appropriately and proportionately. The legal protection of those affected is ensured by extensive judicial review options.
Frequently Asked Questions
When may police enforcement measures be lawfully applied?
Police enforcement measures may generally only be used when other, less severe measures to enforce lawful police actions are insufficient or promise no success (principle of proportionality, § 5 VwVfG, § 12 PolG). A necessary requirement is the existence of an appropriate legal basis expressly authorizing the use of the respective measure. Usually, the use of enforcement measures also presupposes that an administrative act was previously issued and sufficiently communicated to the addressee, as well as the required warning in accordance with §§ 13 ff. VwVG. Immediate coercion (§ 55 PolG or § 6 VwVG) is typically only allowed when substitute execution or coercive fine are ineffective or insufficient. Attention must always be paid to secondary provisions such as time limits and any appeal rights of the affected person.
What forms of police enforcement measures exist under German police law?
The standard enforcement measures provided for in German police law can typically be divided into three main groups: coercive fine (a monetary penalty to enforce administrative acts), substitute execution (performance of an act by a substitute at the obligated person’s expense), and immediate coercion (use of physical force, weapons, or means of physical force). These measures are exhaustively regulated in the Administrative Enforcement Act (VwVG) and in the relevant police laws of the states. Their scope, requirements, and legal consequences are defined in detail and may not be freely combined by the authority but only according to statutory requirements.
What legal remedies are available to those affected by enforcement measures?
Those affected may take legal action against the threat or application of police enforcement measures, for example by filing an objection or challenging action under the Administrative Court Procedure Act (VwGO). In this process, both the lawfulness of the underlying administrative act and of the enforcement must be reviewed. In cases of acute danger to fundamental rights, interim judicial protection is available under §§ 80, 123 VwGO. In addition, in the case of inappropriate use of force by police, disciplinary complaints or criminal charges may also be considered.
Is it always required to announce police enforcement measures in advance?
In principle, the police must announce the intended enforcement measure in advance in accordance with § 13 VwVG or the corresponding state provisions before applying it. The warning gives the affected person the opportunity to comply voluntarily and thereby avert enforcement. In exceptional cases, such as imminent danger or when the purpose of the measure would be endangered by the warning, prior announcement may be omitted. However, this must be construed narrowly and always requires careful legal examination and documentation.
What is the significance of the principle of proportionality in the application of enforcement measures?
The principle of proportionality is the decisive legal criterion for the selection, announcement, and application of police enforcement measures. It requires that the chosen enforcement measure is suitable, necessary, and appropriate (“prohibition of excess”). The police must select the mildest among several equally effective means. Furthermore, the measure used must not result in a disadvantage that is clearly disproportionate to the intended purpose. At every stage—from warning to implementation—the police must document and, where necessary, justify how proportionality has been maintained.
May police enforcement measures be used against minors or particularly vulnerable persons?
Police enforcement measures may in principle also be used against minors or particularly vulnerable persons (such as persons with disabilities, pregnant women), but stricter safeguards apply in such cases. It must be examined with particular care whether the goal of the enforcement measure can be achieved by other, less severe means. Authorities must take special measures to safeguard the welfare of children and physical integrity (§§ 1666 BGB, Art. 2 para. 2 GG). A violation of these requirements can render the enforcement unlawful and result in civil or criminal consequences for those responsible.
How must police enforcement measures be documented and what proof obligations exist?
After the application of police enforcement measures, there is a comprehensive duty of documentation. The measures taken, their reason, course, and any injuries or damages, as well as the considerations on proportionality, must be recorded in detail in an incident report or protocol. This obligation serves judicial oversight and ensures transparency for affected individuals. Inadequate or erroneous documentation may indicate the unlawfulness of the measure and, if applicable, have liability or disciplinary consequences for those responsible.
